Farmers Insurance may have withdrawn its recent climate change lawsuit against 98 local Illinois governments, but anxiety over future suits is simmering among Chicago-area communities.
Cook County local government attorney Michael Del Galdo, who represented nine suburban Cook communities named in the suit filed by Farmers Insurance, argues that Farmers' legal challenge may represent a new litigation front for Illinois cities rather than a one-off legal occurrence.
"Farmers' climate change suit, as outrageous as it was, should be taken seriously as a potential legal strategy by insurers and other business interests to foist their legal liabilities onto towns and taxpayers for weather related damages, arguing it was 'climate change'," said Del Galdo, who is the town attorney for Cicero and other Cook suburbs.
What to do?
Del Galdo says that the Illinois legislature should act to protect communities against future suits.
"The Illinois legislature should indemnify towns and cities against liability for negligence relative to climate change," Del Galdo says.
Farmers Insurance, whose May 2014 suit included Cook County, the City of Chicago, and dozens of suburban communities, based its legal action on the heavy rains and flooding that occurred April 17-18, 2013, causing damage in at least 600 homes in the Chicago area.
Farmers Insurance laid the blame on climate change and used climate change planning against local officials.
That took some stones.
The lawsuit stated that in 2008, Cook County, the City of Chicago, and other municipalities had "adopted the scientific principle that climate change has caused increases in rainfall amount" and to help address the problem had adopted the Chicago Climate Action Plan.
After an outcry from local officials - with whom Farmers has other lines of insurance business or with whom the firm was seeking new business - the insurance giant withdrew the suit a month later, sources say. But its action set off warnings to local governments from experts.
Myron Ebell, director of the Center for Energy and Environment at the Competitive Enterprise Institute, believes that the suit set "an extremely bad precedent".
"I think that the claims of climate change are going to be used in the financial world by anyone who can claim it as, you know, a hook to either claim some damages or avoid responsibility for damages," said Ebell.
A former member of President Barack Obama's Climate Adaptation Task Force also warned of the legal risk to communities.
"It's a long shot for the insurance companies, but it's not completely implausible, and if you have enough cases like this going forward it might build some helpful precedent," said Robert Verchick.
A legal scholar also sounded the alarm to local governments saying that they may be found negligent in the future for climate change.
"Lawsuits like this are really good at putting municipalities and other entities that are building in dangerous areas on notice with regards to the impacts of climate change," said Maxine Burkett, associate professor at the University of Hawaii Law School.
Del Galdo, who represented Berwyn, Cicero, Melrose Park, Riverdale, Broadview, Chicago Heights, Hazel Crest, Markham & Steger in the suit, said that the Farmers' suit was a "shot a across the bow" of municipalities and he is warning state lawmakers that they need to strengthen Illinois' municipality tort immunity law.
"Farmers' lawsuit was a shot across the local government bow," said Del Galdo. "The next climate change suit may not be voluntarily withdrawn, and communities could be forced settled for huge amounts of taxpayer money. That's why lawmakers must strengthen local government tort immunity."
The mayor of one of the communities targeted by the Farmers' suit agrees with Del Galdo.
"The Farmers suit is likely only the first, not the last of its type that we are going to see," said Melrose Park Mayor Ronald M. Serpico. "The General Assembly should consider strengthening the local tort immunity statute to protect us against climate change lawsuits."
Even if a suit settles or flops, small towns face big bills defending themselves - with taxpayers picking up the tab.
Will any lawmaker take the lead?
This column was adapted from an earlier article in The Illinois Observer.